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A worker by any other name

3rd September 2018

A WORKER BY ANY OTHER NAME…

The Impact of the Pimlico Plumbers Case for Employers

If you own your own business, you may owe those who carry out work on your behalf additional rights and payments. A recent Supreme Court decision may significantly affect the manner in which workers are engaged.

Mr Smith was engaged by Pimlico Plumbers Limited as a plumbing engineer and he took a number of complaints to the Employment Tribunal, including that he, as a worker, had suffered unlawful deduction of his wages, non-payment of statutory annual leave and discrimination on the grounds of disability. The Employment Tribunal agreed.

Pimlico Plumbers were unable to accept that Mr Smith was a worker rather than genuinely self-employed and therefore appealed the decision to the Employment Appeals Tribunal, the Court of Appeal, and finally to the Supreme Court.

Characteristics of a Worker

The Employment Rights Act 1996 sets out the following conditions for an individual to be classified a worker:

A contract;

A requirement for the work to be carried out personally; and

A relationship that is not that of a customer or client.

In Mr Smith’s case, there was no doubt that a contract existed and therefore the Court focused on the need for personal service and the relationship between the parties.

Personal Service

Personal service is ultimately decided upon whether the person in question is genuinely able to substitute someone else to complete the work on their behalf. In his written service agreement, Mr Smith was able to substitute himself for another company engineer but could not assign his work to any external engineer in this field. The Court concluded that this limitation indicated that personal service was a significant feature of Mr Smith’s work for Pimlico Plumbers.

Working Relationship

The Court identified that Pimlico Plumbers had a significant amount of control over Mr Smith’s working practices. This is inconsistent with them being a customer of his. He was required to wear a Pimlico Plumbers uniform and drive a van which bore the company logo. He was also required to carry a Pimlico Plumber ID card and needed to make himself available for their work for a minimum of 40 hours per week. Pimlico Plumbers took the view that as Mr Smith took on some of the financial risk in relation to unpaid invoices, he was an independent contractor. The Court, however, was not persuaded by this argument.

The Risks for Employers

The classification of an individual as a ‘worker’ will ultimately turn on the facts of each individual case. However, as a potential employer, you need to be aware of the additional rights of workers and the obligations you face.

A worker is entitled to the following rights:

Protection from unlawful deductions of wages

National Minimum Wage

Paid Annual Leave

Rest breaks

Statutory Sick Pay in some circumstances

Maximum Working Week

Protection for making protected disclosure

Right to be accompanied at disciplinary/grievance

Vicarious liability of the employee for torts of worker

Protection under Data Protection Act 1998

Protection from Discrimination

Not to suffer detriment in exercising rights under a trade union membership

The right not to suffer detriment as a result of exercising any of the rights under legislation, including that set out above.

Should any of these rights be breached, a costly claim could be made against you as an employer.

Conclusion

The impact of this case is an important reminder for businesses that the label given to any working relationship is irrelevant; the status of any individual will be decided upon the reality of the circumstances, to include the conduct of the parties. Simply calling an individual a “self-employed contractor” will not automatically mean they cannot be a worker or indeed an employee.

It is therefore important to assess the true nature of the engagement with a view to understanding their real status and ensuring that correct procedures are in place and followed.

This is however not new as a concept. The case raises an issue that tribunals throughout the UK have grappled with for years, and it is an issue which even the HMRC consider and deal with in a similar manner, through IR35. Although, whilst a finding by HMRC may be indicative it would in itself still not be binding on a Tribunal.

For further advice on any of the issues raised in this article, or any other employment law issue, please contact Jason Alcock on 01543 263456 or email jalcock@ansonssolicitors.com.